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1 Marcus R. Mumford (Admitted Pro Hac Vice)

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1 Marcus R. Mumford (Admitted Pro Hac Vice) Case 3:17-mc-00348-JCC Document 7 Filed 11/10/17 Page 1 of 9 Marcus R. Mumford (admitted pro hac vice) 405 South Main, Suite 850 Salt Lake City, UT 84111 (801) 428-2000 [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Case No. 3:17-mc-00348-JCC Plaintiff, RESPONSE TO THE COURT’S ORDER v. TO SHOW CAUSE [DOC. 6], AMMON BUNDY, et al, PROVISIONAL RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE Defendants. [DOC. 2069] AND MOTION FOR FINAL ADDITIONAL ENLARGEMENT OF TIME Judge John C. Coughenour On November 3, 2017, the Court issued a sua sponte order to show cause based upon my failure to respond to Doc. 2069, and specifically why my failure should not be treated as an admission that the relief outlined in that order should be granted and that the January 8, 2017 evidentiary hearing is no longer necessary. The November 3 order gave me until today, November 10, 2017 to file my response. This filing is timely. In the response, I have included 1) a direct answer for my failure to file in response to Doc. 2069, 2) a provisional response to Doc. 2069, and 3) a motion for one final enlargement of time to file a finalized, rather than provisional, response to Doc. 2069. I. DIRECT ANSWER IN RESPONSE TO DOC. 6 In early August 2017, I filed for and was granted an extension of time to respond to Doc. 2069, on the primary basis of needed more time to obtain transcripts necessary to investigate, research and compose my response. See 3:16-cr-00051, Doc. 2192 (August 8, 2017). As I worked on making my response, I was in repeat communication with opposing counsel as I 1 Case 3:17-mc-00348-JCC Document 7 Filed 11/10/17 Page 2 of 9 realized more time was necessary, and on October 31, 2017 I requested and obtained leave of the Court to file my response by that day, October 31, 2017. That date is significant because opposing counsel and I had reached an agreement for the extension of time up to that date and I had agreed to file and request a formal extension from the Court. In that motion (Doc. 4) (which I incorporate fully here as additional support for this response and the motion below), subsequently granted on the same day (Doc. 5), I rather thoroughly outlined the basis for the delay, the needed extra-time and provided an explanation and detail of work done to-date, including more than 100 hours of work, reviewing more than 500 pages of transcripts, and having to respond to an unexplained laundry list of dozens of record citations in the original OTSC that has literally become an overwhelming task in terms of time and effort. As of October 31, 2017, I was still not finished, and though I reasonable thought at the time I was very close to being finished, I made mistake in my motion in asking only for an extension of time through the date of that filing. I was attempting to be conservative and circumspect in my request, but candidly, I simply should have asked for more time and mistakenly did not. I apologize to the Court and opposing counsel for the subsequent delay of 10 days. If there were the only factors, I would have been in contact with the Court and with opposing counsel prior to now – but these were not the only factors contributing to this extra 10-day delay. On October 31, 2017, not only was I diligently working on my response to the original OTSC (Doc. 2069), but late that day I learned that the United States had decided to re-try my client in, United States of America v. Claud R. Koerber, Case No. 2:17-cr-17 (District of Utah). This is a case that I have been defending intensively since back in 2009. It has included four different indictments, multiple appeals, a remand, a full criminal trial lasting eight weeks from August 2017 through October 2017, and recently included a hung jury and mistrial. I previously 2 Case 3:17-mc-00348-JCC Document 7 Filed 11/10/17 Page 3 of 9 mentioned this case in my last motion (Doc. 4) because in late August (after my initial request for extra time) I was required due to professional conviction and ethical demands, to represent Mr. Koerber at his trial from August through October, though I had not been on the case since the most recent indictment in January 2017, was not ready for trial, and the district court had failed to grant a continuance – all pro bono. As I’ve previously described this case is significant, complex, intensive as far as time commitment, and my involvement in that trial under the circumstances caused tremendous interference with my ability to work on the filing here in response to Doc. 2069. There was also a cascading effect of my involvement in that case, on my small practice, which caused me to delay and postpone work on other client matters – and this response. Nevertheless, as soon as I was done with that case, I redoubled my efforts here on this project, but on October 31, 2017 not only did we learn that the government intended to re-try Mr. Koerber in this eight year old case, but soon thereafter the assigned judge recused. The news of the coming re-trial required a tremendous amount of immediate attention, identifying urgent issues related to records, witnesses, anticipated filings, communication with the client, coordination with prior experts, etc. In addition, the recusal of Judge Robert Shelby – not fully explained – also included the same judge’s recusal in two other significant and complex cases of mine: Garth O. Green Enterprises, Inc., et al., v. Randall Harward, et al, 2:15-cv-556 (District of Utah); and Islet Holdings et al v. Islet Sciences et al, 2:12-cv-799 (District of Utah). This new development, caused a chain reaction of unexpected legal consequences, right at the same time my response in this matter was due – and it has been overwhelming. To help this Court understand, in the USA v. Koerber case (which is related to one of the OTSC issues here), the Magistrate Judge appears to have relied upon the OTSC here and the allegations therein, when he deprived me of CJA approval, denied my ability to work with co-counsel on the case, and made 3 Case 3:17-mc-00348-JCC Document 7 Filed 11/10/17 Page 4 of 9 other decisions increasing the burden of USA v. Koerber on my time and mental ability, in terms of how much of each a response like this obviously requires. Further, the unexpected recusal of Judge Shelby from USA v. Koerber and the other two cases named above – immediately created ethical responsibilities on my part, regarding prioritizing my client’s needs, including one urgent and extensive filing immediately required in Green Enterprises, Inc., v. Harward. Finally, at the same time, a four-day evidentiary hearing in State of Utah Attorney General v. Jason Hawkins, 17-1903083 (3rd District Court – Salt Lake District, State of Utah) had run over from October 24 to October 31, 2017. The case involves allegations of a complex communications fraud scheme and pattern of unlawful conduct involving a real estate brokerage’s efforts to close residential short sale transactions. The unexpected and urgent nature of all three of these matters, was not something I anticipated in early August when I asked for the original extension then, nor could I have anticipated the exceptionally overwhelming circumstances from October 31, 2017, through to now. Nevertheless, I have continued to work on completing my response to the original OTSC in this matter, with every moment I could find, prioritizing this project above all other non- emergency demands on my time and efforts. All this being said, the Response is still not finished. I am attaching it to this filing as a “provisional” filing, so that the court can see that I have diligently been working, on this extensive answer. Frankly, it would only take a few hours to draft the OTSC as it exists, and that was likely following only a few hours quickly creating the laundry list, undescribed and unexplained citations in the OTSC. On the other hand, I am now at least 150 hours into the Response, with fully explained legal objections to the form and merit of the OTSC and related due process implications, as well as a thorough, citation by citation response to each possible allegation. As the Court can see by looking at the provisional filing, I 4 Case 3:17-mc-00348-JCC Document 7 Filed 11/10/17 Page 5 of 9 am taking this matter very seriously, I disagree with the allegations based upon the thorough and exhaustive citation I’ve made to the transcripts I have available, and even leaving aside all the legal deficiencies of the OTSC, I have a meritorious and thorough response to each issue raised. Unfortunately, the way this issue has been crafted, I am forced to cover the provided citations as one looking for the proverbial needle in a haystack lest I miss one citation, or overlook one possible allegation (since none are described or explained specifically in the OTSC), my professional reputation and ability could suffer greatly. In sum, I have endeavored diligently to present the response ordered, I have a meritorious response to each allegation, my shortcomings on meeting the time deadline have not been for lack of diligence, instead I have simply made the mistake of underestimating how long it would take to finish the response, and have previously requested too little time to finish.
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